Supreme Court dismisses Leave to Appeal Application in Deering

Written on December 20, 2012.

The Supreme Court of Canada has dismissed the application for leave to appeal the Court of Appeal for Ontario’s decision in Deering v. Scugog (Twsp) et. al., by the municipal Defendants. The Court of Appeal for Ontario had previously upheld the trial Judge, finding that: “at the crest of the subject hill, even a prudent driver facing nighttime eastbound traffic would have only seconds to react to an apparently directly oncoming car on a narrow, unlit, unmarked and unsigned rural road. Accordingly, the trial judge’s finding that the road was in a state of non-repair and his conclusion that the municipalities were at fault for the non-repair were entirely reasonable.” It seems now that municipal owners of such roads have to perform night-time testing to ensure that there are no mirages or visual disinformation presented by the road geometry, and if so, put up lights, signs, road markings and the like. Of course, given the recent ruling of the Ontario Superior Court of Justice in the Fordham case, if “rural” drivers ignore those warnings, then its still possible that the municipalities will be held liable for what would otherwise be 100% driver error. Despite the repeated statements by the Supreme Court of Canada that municipalities are not insurers of the road and travelling public, the truth is that they are effectively treated as such by the Courts here in Ontario, especially when you look at these judicial decisions, combined with effect of joint and several liability a.k.a. the 1% rule, the watering-down of any meaning which notice provisions like s.44(10) of the Municipal Act, 2001 have, and the liberal use of “discoverability” in favour of Plaintiffs who fail to meet the limitation period.